0120152701
11-28-2017
Yessenia H.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Yessenia H.,1
Complainant,
v.
Sonny Perdue,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120152701
Agency No. RD-2014-00830
DECISION
On August 7, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's June 30, 2015, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
The issues presented in this case is whether Complainant was subjected to harassment and discrimination based on her disability and reprisal when she was terminated from her position during her probationary period; and whether she was denied a reasonable accommodation.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Area Technician, GS-5 at the Agency's Single Family Housing Division facility in Richmond, Virginia. Complainant maintained that she had mental and physical disabilities which substantially impaired several of her major life activities. Complainant notified her first-line supervisor (S1) of her disabilities at the beginning of her employment in June 2014. Complainant believed her second-line supervisor (S2) was aware of disabilities because she reported them on her job application. She indicated that after management learned that she filed the instant complaint they engaged in retaliatory actions against her.
Complainant maintained that she was terminated from her position six months into her probationary period. She also maintained that she was assigned sub-office duties which were outside of her official duties, her request for the opportunity to adjust her work schedule was also denied. Complainant indicated that she wanted the schedule change so that she would be in the office on a day that most of the employees were out of the office and she would be able to complete her work uninterrupted. Complainant also maintained that she wanted the adjustment because of her psychiatric disability.
Further, Complainant indicated that S1 did not respond to her request for a reasonable accommodation. In August 2014, Complainant requested that she be allowed to telework because the office environment aggravated her mental disability. Specifically, she indicated that she wanted to telework because she had personality conflicts with several other employees in the office, and these conflicts exacerbated her psychiatric condition. Complainant argued that telework would have allowed her to be more productive and efficient in her job duties. Complainant believed that her request was denied because she was complaining about S1's "friends." Complainant also maintained that she was subjected to a hostile work environment.
On October 10, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of mental disability (personality disorder/Post Traumatic Stress Disorder (PTSD)), physical disability (back and knee injuries), and reprisal for prior protected EEO activity when:
1. On October 1, 2014, she was terminated from her position as a GS-1101-05,
Area Technician, during her probationary period;
2. In or about July 2014, she was required to perform duties outside of her official
position description;
3. On an unspecified date, her supervisor denied her request to adjust her work
schedule;
4. On unspecified dates, she was not provided reasonable accommodations for her
disabilities; and
5. On several dates, she was subjected to various acts of harassment, including but
not limited to:
a. on July 22, 2014, she was accused of "throwing a legal pad" at another
employee;
b. on August 22, 2014, she was issued a Letter of Counseling (LOC);
c. on August 26, 2014, she was questioned and criticized for not attending a coworker's birthday celebration;
d. on August 28, 2014, her supervisor accused her of being Absent Without
Official Leave (AWOL);
e. on September 25, 2014, a coworker became confrontational with her,
including yelling and pointing a finger at her; and
f. on unspecified dates, a coworker negatively commented on her attire.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The Agency found that assuming Complainant established a prima facie case of reprisal and disability discrimination, management articulated legitimate, nondiscriminatory reasons for its actions. Specifically, management indicated that Complainant was terminated on October 1, 2014, during her probationary period because she exhibited inappropriate conduct and unacceptable performance. It was asserted that problems with Complainant's performance began in the first week of her employment. Management indicated that Complainant received numerous customer complaints and created a hostile work environment in the office. S1 indicated that she recommended Complainant's termination in July 2014, but was told by Human Resources to give Complainant the opportunity to improve. S1 offered Complainant training and issued her a Letter of Concern, however, these efforts to improve Complainant's conduct and performance were unsuccessful. S1 prepared Complainant's termination letter in August 2014, and the letter included eight pages of accounts of unsatisfactory customer service and inappropriate office conduct.
With regard to claim 2, Complainant being required to perform duties outside of her official position description, S1 explained that the duties assigned were listed in her position description but were sub-office duties at the basic level technical duties that were performed by other Area Technicians. S1 indicated that at least four other Area Technicians under her supervision were performing the same duties. In claim number 3, Complainant alleged that her request to adjust her work schedule was denied. Management indicated that Complainant was instructed to submit a departmental form in order for her to receive a schedule adjustment but Complainant did not submit the requested form.
With regard to claim 4, Complainant's request for a reasonable accommodation, S1 acknowledged that Complainant did request telework but denied that Complainant stated that she wanted telework because the office environment aggravated her mental disability or that she was requesting a reasonable accommodation for her mental disability. S1 indicated that she told Complainant that as a probationary employee that was still in training her request could not be approved. S1 verified the telework policy with Human Resources. S1 asserted that she told Complainant that she could request an accommodation to enable her to successfully fulfill her position duties but still she did not request an accommodation. S2 indicated that Complainant never asked him for a reasonable accommodation and she did not disclose to him that she had a disability which needed an accommodation. Notwithstanding, S1 approved Complainant's request to move out of her work unit due to problems with other employees. Complainant was moved to the sub-office because her behavior was so "disruptive" and "belligerent" that work began to stop and slow-down in the unit.
Complainant asserted in claim 5, that she was subjected to various acts of harassment. With respect to Complainant's claim that a coworker said that Complainant threw a legal pad at her, management explained that the statement was just a figure of speech. The coworker meant that Complainant was "throwing words at her." With regard to Complainant being issued a LOC, Complainant argued that she was issued the LOC because she discovered several things that were wrong with the program and she had complained about a reasonable accommodation that she was not getting. Management explained however, that Complainant spoke inappropriately to an Administrative Assistant and she refused to be included on mail duty rotation because she believed that the mail was not part of her position description. Management indicated that the issue needed to be addressed as there had been "a series of incidents" involving Complainant verbally lashing out at other employees.
Further, S1 acknowledged that she asked Complainant why she had not attended a coworker's birthday luncheon. S1 indicated that she asked Complainant out of curiosity and it did not have anything to do with her disability or EEO activity. Likewise, management indicated that Complainant became confrontational with a coworker after the coworker violated protocol when she asked Complainant to fast-track an application. Neither employee was disciplined. Also, when Complainant could not be found, S1 told her that people could think that she was AWOL if she did not let them know where she was. Finally, Complainant alleged that coworkers negatively commented on her attire. She explained that several times throughout her employment, she was asked if she bought her shirts at Goodwill. Management indicated that it did not have any knowledge of this incident.
Complainant's Team Leads who were also her coworkers maintained that Complainant made a lot of mistakes which negatively impacted the productivity of the department. The Team Leads indicated that when they attempted to correct Complainant or show her the correct processes, Complainant became belligerent and very condescending.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that she was denied her due process rights when she was terminated at the six month mark during her probationary period instead of being allowed to complete the full twelve month probationary period. She contends that the information regarding her performance was provided by a coworker and not her supervisor. Complainant also contends that she was not treated like other workers.
Further, Complainant maintains that she was removed without the use of the Douglas Factors. Complainant contends that the mental health accommodations requested were reasonable and did not create an undue hardship, and reassignment or transfer was not considered in the event management believed her mental health could not be accommodated in her own position.
In closing, Complainant requests a finding that the Agency failed to provide a reasonable accommodation, retaliated against her, required her to perform duties outside of her job description, subjected her to harassment and a hostile working environment, intentional discriminated against her, and violated her veterans' preference rights.
In response, the Agency asserts, among other things, that it articulated legitimate, nondiscriminatory reasons for its actions and Complainant did not demonstrate that the reasons were pretext for discrimination. The Agency requests that the FAD be affirmed.
ANALYSIS AND FINDINGS
Standard of Review
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of reprisal and disability discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions, as was addressed above and Complainant did not demonstrate that the Agency's reasons were pretext for discrimination or reprisal. While it is clear, that Complainant does not agree with management's explanations, regarding her termination and the other issues involved in this complaint, she did not demonstrate that the Agency's reasons were pretext for discrimination. Where a complainant is a probationary employee, we have long held that he or she are subject to retention, advancement, or termination at the discretion of an agency so long as these decisions are not based on a discrimination. Kaftanic v. U.S. Postal Serv., EEOC Appeal No. 01882895 (Dec. 27, 1988) (citing Arnett v. Kennedy, 416 U.S. 134, 152 (1974)). In this instance, Complainant's termination letter outlined multiple issues that supported the Agency's reasons to terminate her including: Complainant's failure to timely take training courses, Complainant's failure to timely complete an Individual Development Plan: Complainant's refusal to perform mail duties; Complainant's failure to timely review her performance plan as instructed; Complainant's refusal to take the Full and Paid Contracting duties training; and Complainant's behavior with regard to her coworkers and clients.
With respect to Complainant's allegation that she was denied a reasonable accommodation, the Commission's regulations require an Agency to make reasonable accommodation for the known physical and mental limitations of a qualified individual with a disability unless it can show that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o), 1630.2(p). A qualified individual with a disability is an "individual with a disability" who satisfies the requisite skill, experience, education and other job related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. � 1630.2(m).
Essential functions are the fundamental job duties of the employment position the individual with a disability holds or desires. 29 C.F.R. � 1630.2(n). A function may be essential, for example, because the reason the position exists is to perform that function or there are a limited number of employees available among whom the performance of that job function can be distributed. Id. at � 1630.2(n)(2). Evidence of whether a particular function is essential includes the employer's judgment as to which functions are essential; written job descriptions; and the amount of time spent on performing that function. Id. at � I630.2(n)(3).
In the instant case, we find that even if we assume Complainant is a qualified individual with a disability, the record does not show that she ever requested a reasonable accommodation. Although Complainant did ask to telework, S1 indicated that she did not state that she wanted to telework because the office environment aggravated her mental disability or that she was requesting a reasonable accommodation for her mental disability. With regard to other forms of reasonable accommodation, S1 stated that she told Complainant that she could request an accommodation to enable her to successfully fulfill her position duties but she did not request an accommodation. S2 also indicated that Complainant never asked him for a reasonable accommodation and she did not disclose to him that she had a disability which needed an accommodation. As Complainant did not request a hearing, we do not have the benefit of an Administrative Judge's credibility determinations after a hearing; therefore, we can only evaluate the facts based on the weight of the evidence presented to us. Although Complainant's request to telework was denied, we note that she was allowed to move out of her unit into another space after she reported having problems with her coworkers. As such, we find that although there is no persuasive evidence that she requested an accommodation, she was effectively accommodated when she was allowed to move into another space.
Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant's employment. See EEOC Notice No. 915.002, Enforcement Guidance on Harris v. Forklift Systems, Inc., at 3 (Mar. 8, 1994). To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998).
In assessing whether Complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. � 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). Generally, "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." Kozak v. United States Postal Service, EEOC Request No. 01A63021 (Aug. 23, 2006); Battle v. United States Postal Service, EEOC Request No. 0120083387 (Feb. 4, 2010). Such conduct "must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and ... that the victim in fact did perceive to be so." Id.
Upon review, we find that even when all of Complainant's claims are considered in total, Complainant has not established a claim of harassment. Complainant has not provided evidence which indicates that she was subject to conduct which had the purpose or effect of unreasonably interfering with her work performance, and/or created an intimidating, hostile, or offensive work environment. We find, in light of the standards set forth in Harris, no persuasive evidence that the incidents even if accurately described by Complainant, were sufficiently severe or pervasive enough to have unreasonably interfered with her work performance and/or to have created an intimidating, hostile, or offensive work environment.
CONCLUSION
Accordingly, we AFFIRM the Agency's FAD which found that Complainant did not demonstrate that she was subjected to reprisal, disability discrimination, or that she was subjected to a hostile work environment or denied a reasonable accommodation.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
_11/28/17_________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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